As Waivers Take Hold, ESEA Renewal Still Uncertain

Now that the Obama administration has issued more than 30 waivers to help states get relief from parts of the No Child Left Behind Act, a partisan and paralyzed Congress has yet to decide to whether to begin work on the long-overdue reauthorization of the underlying law—the Elementary and Secondary Education Act—or let the waivers provide lessons for an eventual reauthorization bill.

Lawmakers also must consider whether the policies put in place by the waivers work for students, particularly the traditionally overlooked populations that the law was designed to protect, such as students in special education and English-language learners.

Meanwhile, some members of Congress—as they made clear at a recent hearing on Capitol Hill—are still wondering whether U.S. Secretary of Education Arne Duncan overstepped his bounds by issuing waivers to states with strings attached, in their view reworking major parts of the NCLB law without congressional approval.

U.S. Sen. Lamar Alexander of Tennessee, the top Republican on the U.S. Senate Health, Education, Labor, and Pensions committee, seems to be in that camp. At a Feb. 7 hearing of the panel, he held up a copy of Tennessee's waiver document—which is about as thick as a dictionary—and said that the waiver process has become a sort of inside Washington version of the children's game "Mother May I?" with states begging the Education Department for leeway.

"This simple waiver authority has turned into a conditional waiver with the [education] secretary having more authority to make decisions that in my view should be made locally by state and local governments," said Sen. Alexander, who himself served as secretary of education under President George H. W. Bush.

For instance, he said, the administration "pretty well wrote the law" on teacher evaluation, since the waivers call for states to evaluate educators based in part on student outcomes. Sen. Alexander acknowledged, however, that Congress had dropped the ball on reauthorizing the law, which is more than five years overdue.

'Always Plan B'

Secretary Duncan, who testified at the hearing, essentially laid the blame for the waivers at lawmakers' feet, saying he and members of his staff spent hundreds of hours pushing lawmakers to act on reauthorization, which turned out to be "fruitless."

"I came up and met with you repeatedly to try to push a strong" reauthorization, Secretary Duncan said. Issuing waivers instead was "always, always our Plan B. He said he stands ready to work with Congress on legislation. But first, lawmakers need to get over the dysfunction that has plagued them on just about every issue, including K-12 policy, according to Mr. Duncan.

Sen. Tom Harkin, D-Iowa, the chairman of the committee, appeared to agree, thanking Secretary Duncan for "stepping into the breach" when Congress didn't act. And he praised some of the policies put in place by the waivers. For example, he's pleased to see that many states are now testing students in subjects other than reading and math, both of which are required as part of NCLB law accountability.

But Sen. Harkin has big concerns about so-called "super-subgroups," which allow states to group together students with disabilities, English-language learners, and others. Super-subgroups aren't part of the NCLB law, which requires states to break out the performance of particular groups of students, including English-learners, racial minorities, and students in special education. But a number of states have included super-subgroups in their waiver plans.

Secretary Duncan emphasized that super-subgroups can actually be helpful for some students, including those in special education, because some of them weren't counted in a state's "n" size and were therefore invisible under accountability plans. "N" size is the number of students a school has to have in a particular group—such as racial minorities—in order to get counted under a state's accountability plan.

'Regulatory Purgatory'

Some senators indicated that they are pretty happy with how their states have fared under the waivers, including Sen. Michael Bennet, D-Colo., whose state has created a new way of tracking individual student progress.

But Sen. Pat Roberts, R-Kan., said his state hadn't had as good an experience. The waivers, he said, have created uncertainty in his state and left Kansas in "regulatory purgatory."

Two state schools' chiefs who spoke to the committee—Kentucky's Terry Holliday and New York's John King—said the waivers aren't their first choice; they would rather see a reauthorization sooner than later, saying it would offer predictability for states.

But some good things have come out of the waivers, in their view. For instance, Mr. Holliday said the waiver made it easier for his state to transition to the Common Core State Standards, which have been adopted by 46 states and the District of Columbia. Kentucky is arguably the farthest along on implementation of the standards.

Sen. Harkin said in an interview after the hearing that it's too soon to outline next steps. He's not sure just yet if he wants to have more hearings, or get going on a bill. And he said that while elements of the committee's 2011 ESEA renewal bill are likely to inform the new version, the panel also will likely take into account concerns it heard about that bill. (Many in the disability community, which is close with Sen. Harkin, had major concerns about the direction of the committee's measure.)

"It's a new Congress," Sen. Harkin said. "I think we need to make a fresh start on it," possibly incorporating some of the ideas states have put into the waivers.

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